.^2: 


m 


CONFEDERATE  STATES 


vs. 


JOH^^  H.  GILMEE. 


CONFEDERATE    STATES 


vs. 


JOHN   H.    GILMER. 

SUBSTANCE 

OF    THE 

OPENING  ARGUMENT 

OF 

JOPIjN^  h.  gilmee, 

WITH  AUTHORITIES  5 
AXD 

THE  OT»iNio:sr 

I 

OF 

JUDGE  IIALYBURTON 

CUXSTRUING 

THE  SEQUESTRATION  ACT,  &c. 


RICHMOND.  VA.: 

WEST   &  JOHNSTON, 

145  MAIN  STREET. 

1862. 


-:z 


CONFEDERATE  STATES  vs.  JOHN  11.  GILMER. 


May.it  please  the  court.  Early  in  September  last,  I  informed 
the  Receiver  of  this  court,  ih  -writing,  of  all  the  property  or  in- 
terest, of  every  kind,  which  I  held  in  my  hands,  or  was  under 
my  control,  belonging  to  alien  enemies,  as  designated  in  the 
Sequestration  Bill.  I,  at  the  same  time,  informed  the  Receiver 
that  I  should  deny  and  contest  his  right  to  take  possession  of 
the  property  so  in  my  hands.  To  test  the  questions  arising  un- 
der my  objections,  the  writ  of  garnishment,  with  the  accompany- 
ing interrogatories,  has  been  regularly  served  on  me  ;  and  in  an- 
swer to  that  process,  J  now  appear  before  this  honorable  court. 

I  shall  endeavor  to  sustain  the  three  following  propositions: 

I. 

The  Provisional  Congress  had  no  constitutional  power  to  pass 
the  Sequestration  Bill. 

II. 

The  bill  itself  is  in  violation  of  the  Provisional  and  Confede- 
rate Constitutions,  in  derogation  of  the  common  law,  and  utterly 
subversive  of  international  polity. 

III. 

The  instructions  and  interrogatories  prepared  and  propounded 
by  the  Attorney  General,  are  in  violation  of  the  spirit  of  consti- 
tutional freedom;  subversive  of  individual  vested  rights;  regard- 
less of  professional  integrity,  and  against  the  positive  and  well 
established  rules  of  civilization,  sound  morality  and  wholesome 
governmental  action. 


I  shall  entleavor  to  maintain  these  propositions.  They  are  of 
paramount  importance,  and  challenge  the  most  deliberate  consid- 
eration. The  first  proposition  denies  to  the  Provisional  Congress 
the  constitutional  power  to  pass  this  bill. 

I  ask  the  judgment  of  this  court  on  the  enquiry,  ""What  is  the 
Provisional  Constitution  ?  When,  under  what  circumstances,  was 
it  adopted?" 

The  answer  to  these  enquiries  will  control,  in  part,  the  judg- 
ment of  this  court,  on  the  first  proposition.  The  provisional 
constitution  was  adopted  on  the  8th  day  of  February  180 1,  in 
the  city  of  Montgomery,  in  the  State  of  Alaljama,  by  "depu- 
ties of  the  sovereign  and  independent  States  of  South  Carolina, 
Georgia,  Florida,  Alabama,  Mississippi  and  Louisiana."  It  was 
the  child  of  a  new  revolution.  It  sprang  as  the  first  bud  of  the 
tree  of  liberty,  neAvly  planted  on  a  more  congenial  soil.  Its 
framcrs  had,  iu  immediate  prospect,  a  bloody  war  and  a  severe 
struggle.  There  was  a  dark  and  portentous  cloud  overhanging 
the  immediate  destinies  of  the  slavehblding  States.  Energy, 
promptness,  decision  and  concert  of  action,  were  required  for  the 
existing  condition  of  things;  there  was  no  time  to  look  far  or 
minutely  into  the  future.  This  constitution  was  therefore  neces- 
sarily \irn.'Yo]j  provisional  in  its  purposes,  temporary  in  its  scope, 
and  contemplated  a  different  and  more  permanent  "successor:" 
one  that  should  rest  securely  and  deeply  in  the  hearts  of  the 
people,  as  it  was  to  spring  directly  from  the  States,  each  A'oting 
for  itself.   "* 

It  would  have  been  well,  I  apprehend,  for  posterity,  at  least, 
if  the  framers  of  the  Provisional  Constitution,  "had  rested  after 
their  labors."  But  in  hot  haste  and  imraatured  judgments,  they 
precipitated  upon  the  States  a  permanent  constitution.  This 
important  paper  was  adopted  by  the  Provisional  Congress,  on 
the  11th  day  of  March  1861.  It  is  the  work  of  the  same  hands 
which  framed  the  Provisional  Constitution. 

This  constitution  is  tlie  one  which  is  to  control  our  future  des- 
tinies. It  is  the  solemn  act  of  "the  people  of  the  Confederate 
States — each  State  acting  in  its  sovereign  and  independent  cha- 


racter."  Here,  then,  are  two  constitutions  passed  by  the  same 
body,  under  similar  circumstances;  but  adopted  and  ratified, 
sanctioned  and  endowed  by  different  sources  of  constitutional 
'power.  The  first,  the  offspring  of  "deputies"  for  specific  pur- 
poses and  limited  objects.  The  second,  though  enacted  by  the 
same  body,  speaks  by  the  authority  of  the  States,  througlv-the 
people  of  each  State.  It  is  permanent  and  fixed,  beyond  the 
control  of  the  enactors,  and  is  a  check  on  their  power  as  derived, 
or  sought  to  be  derived,  under  the  Provisional  Constitution. 

Virginia  ratified  the  provisional  Constitution,  in  convention, 
on  the  25th  day  of  April  1861.  The  Confederate  Constitution 
was  ratified  in  convention  on  the  19th  day  of  June  1861.  Here, 
then,  are  two  distinct  contracts,  or  compacts,  between  the  State 
of  Virginia  and  the  Confederate  States.  I  maintain  that  the 
compact  of  the  19th  of  June  is  the  one  by  which  this  court  is  to 
be  guided  in  its  judgment  in  this  case.  Not  merely  because  it 
is  the  last,  but  upon  the  higher  constitutional  ground,  that  it  is 
the  only  compact  to  which  the  people  look  for  their  protection, 
even  in  the  existing  crisis.  It  was,  by  them,  in  their  sovereign 
capacity,  sanctioned,  adopted  and  ratified,  as  the  compact  by 
which  they  Avould  hold  the  Confederate  States  hound,  in  all  future 
interstate  relations.  This  is  placed  beyond  doubt,  by  the  com- 
pact itself.     It  is  in  the  following  words : 

"  We,  the  delegates  of  the  people  of  Virginia,  in  convention 
assembled,  do,  in  their  name  and  behalf,  assent  to,  ratify  and 
ordain  the  Constitution  of  the  Confederate  States  of  America, 
adopted  by  the  Congress  of  the  Confederate  States  of  America, 
on  the  eleventh  day  of  March,  eighteen  hundred  and  sixty-one : 
and  ive  do  hereby  make  known  to  all  whom  it  may  concern,  that 
the  said  Constitution  is  binding  upon  the  people  of  this  Com- 
monwealth. But  this  Constitution  is  ratified  and  adopted  by 
Virginia,  with  the  distinct  understanding  on  her  part,  that  she 
expressly  reserves  to  herself  the  right,  through  a  convention  rep- 
resenting her  people,  in  their  sovereign  character,  to  repeal  and 
annul  this  ordinance,  and  to  resume  all  the  powers  here- 
by    granted     to     the     Confederate     Government,    whenever 


6 

thcj  shall,  in  her  judgment,  have  been  perverted  to  her  injury 
or  oppression." 

Under  which  of  these  constitutions  was  the  Scqncstration  Bill 
passed?  This  is  a  grave  inquiry.  It  presents  for  adjudication 
this  vital  issue;  do  the  enumerations  or  limitations  of  power,  in 
the  Confederate  Constitution,  lie  in  abeyance  until  the  Confede- 
rate Government  goes  into  operation,  on  the  22d  February 
18G2.  Is  this  second  compact  by  Virginia  on  the  19th  June 
1861,  inoperative,  a  nudum  pactum,  until  the  22d  of  next  Feb- 
ruary? A  graver  question  could  not  be  presented.  Is  there  no 
limitation  upon  the  j^owns  of  the  Provisional  Congress  in  this 
permanent  constitution?  Does  it  deny  to  a  Congress  composed 
of  a  Senate  and  House  of  Representatives,  certain  powers,  by 
express  inhibition,  and  yet  leave  the  "deputies"  in  the  Provis- 
ional Congress  free  to  disregard  those  inhibitions?  Can  the 
Provisioyial  Congress  exercise  legislative  powers,  expressly  de- 
nied and  refused  the  permanent  Congress  ?  In  one  Avord,  can 
the  sovereign  will  of  the  contracting  States,  as  embodied  in  this 
compact,  be  kept  in  a  doimant,  inert,  non-existent  state,  and  sub- 
ordinate to  the  Provisional  compact? 

If  Virginia  were  to  repeal  the  ordinance  of  the  19th  June, 
would  it  leave  the  ordinance  of  the  25th  April  in  full  effect? 
Were  some  dangerous  and  palpable  infraction  of  the  Confederate 
Constitution  now  to  be  made,  which  Virginia  deemed  a  violation 
of  her  compact  of  the  19th  June,  would  she,  under  the  provisions 
and  conditions  of  that  ordinance  be  remitted,  under  the  ordinance 
of  the  25th  April,  to  the  provisions  of  the  Provisional  Constitu- 
tion? Has  she  no  power,  under  her  reserved  rights,  in  the  ordi- 
nance of  the  19th  June,  to  act  until  the  22d  of  February  1862? 
If  the  Provisional  Government  violates  her  sovereignty,  and  seeks 
to  disregard  her  high  and  just  claims  in  any  given  contingency, 
is  she  a  lielpless  instrument  in  the  hands  of  arbitrary  po^ver? 

Sir,  this  is  no  idle  question.  I  look  to  Virginia  and  her  des- 
tiny, in  this  fearful  crisis.  I  owe  no  allegiance  to  the  Confed- 
erate States.  My  allegiance  is  due  to  Virginia,  as  the  deepest 
and  most  sacred  emotions  of  my  soul  are  wrapt  up  in  her 
destiny. 


The  question  again  recurs.  Under  -which  of  these  Constitu- 
tions was  this  bill  passed  ?  If  it  was  passed  by  and  under  the 
authority  of  the  Provisional  Constitution — where  was  its  power 
in  any  grant?  I  concede  the  full  poiver,  in  the  Provisional 
Congress,  under  the  Provisional  Constitution,  to  confiscate  the . 
contraband  property  of  alien  enemies,  in  the  territory  and  un- 
der the  jurisdiction  of  the  Confederate  States.  But  I  utterly 
deny  its  power  to  sequestrate — and  by  a  complex  system  of 
legislative  adjudication,  to  throw  the  people  of  the  Confederate 
States  into  chancery  for  the  next  half  century,  should  free 
government  last  so  long.  The  legal  distinction  between  con- 
fiscation and  sequestration  is  here  all  important.  To  confiscate, 
and  seize  the  property  of  the  enemy  for  the  good  of  the 
whole  people  and  government,  is  a  national  and  valid  act ; 
and  would  be  opposed  by  no  good  citizen.  But  to  sequestrate 
and  by  complex  litigation,  seek  to  protect  and  remunerate  a 
select  class,  is  as  unconstitutional  as  it  is  unjust. 

This  law,  in  its  results,  weakens  and  cripples  the  resources 
of  the  Confederate  Government.  It  destroys  commercial  credit, 
and  assails  vested  rights,  and  by  divesting  them,  weakens  the 
**  sinews  of  war."  How  is  this  I  will  be  asked  ?  A  case  stated 
will  test  the  operation  of  the  bill,  in  its  practical  results.  Take 
the  most  extensive  and  strongest  commercial  house  in  this  city, 
or  New  Orleans.  It  has  a  capital  of  $500,000  in  active  opera- 
tion. It  has  a  partner,  resident  in  New  York,  who  ownes  one 
fourth  of  the  entire  interest,  this  is  $125,000.  The  bill  takes 
this  from  the  firm,  and  locks  it  up  in  the  treasury,  after  de- 
ducting 10  per  cent,  for  the  benevolent  and  innocent  operation. 
Now  the  firm  happened  to  have  borrowed  $100,000  from  Boston 
friends.  Tliis  is  also  seized,  and,  with  a  like  cAar^e  for  the 
seizure,  is  locked  up  in  the  treasury  to  await  future  action,  and 
ultimate  distiibution  among  unnamed  citizens.  This  is  but  one 
of  the  many  highly  beneficial  results  of  this  patriotic  war  meas- 
ure. $225,000  of  $500,000  abstracted  from  active  commercial 
business,  and  locked  up,  to  be  litigated  hereafter  ? 

With  the  policy  of  this  law,  the  court  has  nothing  to  do,  but 


8 

I  cite  this  example  as  an  illustration  of  the  effects  of  sequestra- 
tion. Were  this  sum  abstracted,  and  put  into  war  funds  by 
confiscation,  the  government  assuming  the  ultimate  responsibility, 
no  one  tvouhi  support  the  law  more  cordially  than  myself.  But 
such  a  law  as  this,  meets  my  cordial  distrust  and  candid  opposi- 
tion. 

The  Provisional  Government  is  an  agency — limited  in  the 
duration  of  its  existence :  limited  to  the  exercise  of  specific 
powers,  specifically  granted,  for  limited  and  specific  pm-poses. 
It  is  a  war  government,  and  only  a  war  power  can  be  claimed 
to  be  exercised — precisely  as  enumerated  and  granted.  When 
the  permanent  Constitution  was  enacted,  the  powers  granted  and 
inhil)ited,  were  limitations  and  restrictions,  placed  over  the 
"legislative  power,"  over  and  above  the  enumerations  and  spe- 
cifications contained  in  the  Provisional  Constitution.  It  certainly 
never  could  have  been  designed  to  limit  the  power  of  permanent 
government,  by  a  clause  in  a  subsequent  fundamental  law,  and. 
not  at  the  same  time  intended  by  the  same  limitation,  to  qualify 
and  restrict  a  power  bestowed  by  a  previous  grant  of  powers, 
created  and  bestowed  by  a  i^revious  fundamental  law.  All  the 
authorities  concur  in  establishing  this  principle,  that  the  last 
law,  or  compact,  when  it  supercedes,  limits  or  qualifies  a  grant 
contained  in  a  previous  law  or  compact,  prevails  over  the  former 
grant ;  and  where  the  last  law  or  compact,  recalls  a  power  or 
franchise  bestowed  under  the  first,  this  is  a  total  abnegation  of 
the  former  power  or  franchise. 

It  is  in  contravention  of  every  settled  rule  of  law  and  right, 
that  two  contradictory  and  conflicting  fundamental  laws  can  co- 
exist and  be  of  equal  legal  force.  Where  a  conflict  occurs,  the 
uniform  rule,  everywhere  is,  that  the  last  compact  or  law,  takes 
precedence  of  the  former.  * 

On  this  point  I  refer  the  court  to  Sedgewick  on  Statutes, 
(note,)  284,  8G,  90,  (where  Domat  and  Lieber  are  cited.)  Vattel 
271,  74. 

The  rules  here  given  are  very  explicit,  and  sustain  to  the 
fullest  extent   this  position.     I  also  refer  to  Fletcher  vs.  Peck? 


9 

6  Cranch  128,  and  Martin  vs.  Hunter's  lessee,  1  Wheat,  305. 
With  these  authorities,  allow  me  to  refer  the  court  to  the 
sixth  section  and  clause  fourth  of  the  Provisional  Constitution 
Article  1st.  It  is  in  these  words:  "Congress  shall  have  power 
to  estahlisli  a  uniform  rule  of  naturalization,  and  uniform  laws 
on  the  subject  of  bankruptcies,  throughout  the  Confederacy." 
These  are  the  exact  words  used  on  the  same  subject,  in  the  old 
Federal  Constitution.  Now,  sir,  examine  the  eiglith  section  and 
fourth  clause,  of  article  first  of  the  Confederate  Constitution,  on 
the  same  subject.  The  same  words  are  there  used — with  this 
important  addition  :  ^^But  no  Imo  of  Congress  shall  discharge 
any  debt  contracted  before  the  passage  of  the  sameJ"  Here  is 
an  important,  significant,  fatal  inhibition  of  power.  What  does 
it  mean  ?  To  what  does  it  apply  ?  To  whom  is  the  inhibition 
directed  ?  literally,  it  may  be  said  to  apply  to  the  Congress  as 
created  and  constituted  by  this  constitution.  But  can  it  be 
successfully  contended  that  it  does  not  apply,  in  spirit,  intent 
and  effect,  to  the  Provisional  Congress?  If  not,  then  a  greater 
legislative  power  in  the  scale  of  permanent  legislation  is  allowed 
by  implication  to  a  temporary  legislative  body.,  than  can  be  exer- 
cised by  the  permanent  Congress.  If  this  is  the  policy  and 
principle  of  the  Provisional  Government,  I  ask  what  becomes  of 
the  doctrine  of  strict  construction,  prescribed  limitations  of 
power  and  rigid  adherence  to  the  specific  grant  of  power  ? 

These  are  critical  times.  Revolutionary  experiments  in  the 
form  of  permanent  legislation,  are  indeed  dangerous  implements 
in  untried  hands.  For  one,  I  am  unwilling  to  trust  any  such 
dangerous  "implements  of  power"  in  any  hands,  at  any  time,  or 
under  any  circumstances.  The  plea  of  necessity,  is  the  tyrant's 
plea,  and  oftener  flimsy  and  facticious,  than  solid  and  substan- 
tial. In  this  case  there  was  no  pretence  of  such  necessity.  It 
was  as  vagrant  as  the  power  exercised  was  arbitrary ;  and  never 
should  have  been  claimed  or  exercised. 

Where  then  was  any  power  vested  in  the  Provisional  Congress 
to  sequestrate  ?  They  clearly  have  the  power  and  certainly  should 
have  confiscated  for  the  benefit  of  the  government,  leaving  all 


10 

questions  of  ulterior  action  and  legislative  (][istribution  to  the 
permanent  government.  This  is  the  grand  error.  They  have 
grasped  at  more  power  even  than  they  granted  to  themselves^ 
and  seek  indemnity,  under  the  war  plea.  This  will  not  avail. 
Would  that  they  had  profited  by  the  example  of  the  English 
revolutionists,  in  1640  and  1688  ? 

I  now  proceed  to  consider  my  second  proposition.  Conceding 
the  power  to  legislate  on  this  subject,  in  the  Provisional  Con- 
gress, the  result  of  the  exercise  of  that  power,  as  evidenced  in 
this  bill,  is,  in  my  opinion,  clearly  unconstitutional ;  is  in  deroga- 
tion of  the  common  law,  and  violative  of  international  polity. 

In  the  first  place  it  is  extra-territorial.  The  proviso  embra- 
ces persons  and  assumes  dominion  over  things  not  under  the 
legislative  or  military  power  of  the  Confederate  States.  It  ex- 
cludes from  the  operation  of  the  duties  and  penalties  of  the  bill, 
all  citizens  of  Delaware,  Maryland,  the  District  of  Columbia, 
Kentucky,  Missouri,  and  certain  named  territories  :  provided 
they  are  not  in  actual  hostility  to  the  Confederate  States. 
Where  is  the  power  to  discriminate,  in  this  way.  Are  not  such 
exclusions  in  direct  conflict  with  the  purview  of  the  act? 
Where  is  the  power  in  the  Provisional  Congress  to  legislate  for 
the  benefit  of  the  citizens  of  Delaware,  or  the  City  of  Wash- 
ington ?  What  does  that  proviso  import?  Why  not  embrace 
the  citizens  and  property  of  Pennsylvania?  Where  rests  this 
discretionary  power  for  the  Provisional  Congress  to  protect  an 
alien  friend  in  Delaware,  and  punish  an  alien  friend  in  Penn- 
sylvania? where  the  power  to  punish  an  alien  enemy  in  Dela- 
ware, and  protect  an  alien  friend  in  the  City  of  Washington  ? 
Under  tliis  p7'oviso,  who  is  an  alien  enemy  ?  Does  local  resi- 
dence constitute  a  true  friend  an  alien  enemy,  and  at  the  same 
time  convert  a  real  enemy  into  an  alien  friend  ?  Who  is  to  dis- 
criminate ?  Is  this  proviso  a  mere  fiction,  and  a  delusion? 
What  is  state  sovereignty  ?  Is  that  too,  a  mere  fiction,  to  be 
created  or  destroyed  at  the  will  of  foreign  governments  ?  Are 
we  safe,  if  the  power  to  legislate  over  our  persons  and  property 
is  to  be  exercised  by  the  Federal  Government,  as  this  bill  exer- 


11 

cises  it  over  the  citizens  of  Delaware,  Washington,  &c?  If  we 
seek  to  control  property  and  vested  rights,  in  States  not  belong- 
ing to  the  Confederacy,  how  shall  we  deny  the  same  right  to  the 
Federal  Government  ? 

These  objections  apply  with  equal  force  to  the  directions  of 
the  Attorney  General,  as  to  alien  enemies.  His  views  are  as 
ultra  as  they  are,  to  my  mind,  imtenable.  He  brings  property 
owned  by,  or  money  due,  a  citizen  of  Baltimore,  Washington, 
Wilmington,  (Delaware,)  &c.,  under  the  immediate  protection 
of  this  proviso ;  while  property  owned  by  or  money  due  to  a 
citizen  or  subject  of  England,  France,  Germany,  or  any  other 
foreign  country,  if  he  resides  in  Baltimore,  Washington,  Wil- 
mington, &c.,  is  not  protected.  This  is  a  discrimination,  which 
to  my  mind,  -seems  to  be  directly  in  the  teeth  of  every  authority, 
of  every  nation,  and  people  and  tongue.  Residence  in  the  ene- 
my's country,  (territory,)  in  one  instance,  constitutes  a  man  an 
,  d\\en  friend,  {as  in  Delaware.)  But  if  he  resides  a  few  yards 
further  North,  and  is  a  citizen  of  Pennsylvania,  presto,  change? 
he  is  an  alien  enemy.  Here  is  a  discrimination,  without  a 
difference,  and  a  limitation  without  a  resulting  power. 

On  this  subject  of  extra  territorial  legislation,  I  refer  the 
court  to  the  following  authorities.  Scdgcwick  on  Statutes,  70. 
Story  on  con.  law,  §§'7,  18,  21,  22,  23,  25,  32,  35,  88.  Com- 
monwealth of  Kentucky  vs.  Bassford,  6  Hill  527.  Bank  of 
Augusta  vs.  Earle,  13  Peter's  Rep.  519.  2  Peter's  Rep.  586, 
2  do.  688.  2  Wash.  Rep.  283.  12  Peter's  Rep.  32,  657,  and 
Vattel,  166,  67,  68,  69,  70. 

The  duties  imposed  in  the  second  section  of  this  bill,  are  as 
obnoxious  as  the  penalties  inflicted  in  the  third  section.  In  the 
second  section  it  is  made  the  duty  of  every  citizen  of  the  Confed- 
erate States,  to  become  a  common  informer,  and  patriotic  Paul 
Pry?  In  the  third  section,  "attorneys,  agents,  trustees,  &c., 
are  specifically  designated  as  the  chosen  vessels  of  social  infamy, 
and  if  they,  or  any  one  "fail"  in  this  betrayal  of  the  trusts  con- 
fided to  them,  they  are  to  be  fined  not  more  than  five  thousand 
dollars,  and  imprisoned  not  longer  than  six  months,    and    be 


12 

subject  to  pnit,  at  tlie  relation  of  the  Confederate  States,  for 
double  the  value  of  the  property  they  refuse  to  yield  up.  This 
is  indeed  a  novel  mode  of  rewarding  fidelity,  and  inculcating 
proper  moral  lessons  to  a  free  and  honest  people. 

These  sections  divest  the  most  sacred  rights,  and  repel  the 
most  honorable  injunctions  ;  as  the  proviso  violates  the  letter 
and  spirit  of  the  purview  of  the  entire  act.  See  Sedgewick  on 
Stat.,  GO  to  63.  1  Kent  Com.  403.  Plowden  504.  Dwarris 
on  Stat.  513.  Also  Sedgewick  on  Stat.  150,  00,  081,  2,  3.  2 
Peters  Kep.  27.     Wheat,  L.  Ka.  187,  208,  209. 

They  are  also  in  direct  conflict  with  the  Art.  1,  §  8,  C.  4,  and 
§  9,  C.  15,  and  19  of  Confederate  Constitution.  They  discharge 
debts  existing  at  the  date  of  the  'passage  of  the  law.  This  I 
hold  cannot  be  done,  by  a  law  or  any  law,  passed  by  the  Pro- 
visional Congress,  any  more  than  by  a  law  passed  by  the  Con- 
federate Congress.  Thus  is  the  law  written.  It  is  a  funda- 
mental organic  law,  and  admits  of  no  qualification  or  variation. 
If  it  is,  under  any  circumstances,  or  for  any  purpose,  allowable 
to  violate  this  distinct  inhibition,  the  negation  of  power  as  a 
principle  of  action,  will  in  all  cases  be  an  idle  prohibition. 

This  bill  violates  the  social  compact,  inasmuch  as  it  denudes 
every  citizen  of  his  existing  obligations,  of  moral  responsibility. 

It  strikes  at  the  very  root  of  individual  responsibility,  and 
proposes  to  punish  those  W'ho  prefer  an  honorable  compliance 
with  the  high  dictates  of  conscientious  convictions,  to  the  low 
ofiices  of  a  common  informer,  and  thus  rests  its  patriotic  preten- 
sions upon  the  assumed  treachery  of  its  self-condemned  victims. 

In  addition  to  all  this,  it  is  retroactive,  and  retrospective.  It 
divests  rights,  legally  vested,  and  recalls  acts  and  violates  con- 
tracts, valid  in  themselves,  until  rendered,  or  sought  to  be  ren- 
dered, nidi  by  this  bill.  It  thus  takes  by  surprise  our  own  peo- 
ple, and  punishes  them  for  acts,  innocent,  proper  and  allowable, 
by  the  law  which  existed  as  only  in  force  at  the  date  of  the  acts. 
This  is  against  all  law  and  sound  legislation.  See  Sedgewick 
on  Statutes,  188,  400,  479,  484,  080,  096.  Dash  v.  Vanklooh, 
7  Johnson's  Rep.  477. 


13 

And  this  brings  me  to  the  consideration  of  my  third  proposi- 
tion. I  rest  most  of  my  argument  on  this  branch  of  the  case, 
on  the  very  able  and  k^arned  argmnents,  recently  delivered  in 
the  Confederate  court  in  Charleston,  by  the  distinguished  gen- 
tlemen, who  there  entered  their  protests  against  this  bill  and 
these  interrogatories.  It  is  true  the  court  in  those  cases  over- 
ruled the  demurrers.  It  will  be  seen,  however,  that  I  have 
placed  my  objections  to  the  bill  on  diiforent  grounds  from  those 
occupied  by  these  gentlemen.  I  refer  this  court  to  those  argu- 
ments as  splendid  specimens  of  a  high  order  of  genius,  eloquence 
and  forensic  pleading.  I  cannot  hope  to  cope  with  such  ability, 
but  I  nevertheless  bestow  the  feeble  light  of  my  poor  contribu- 
tion, as  an  honest  offering  on  the  altar  of  constitutional  liberty. 
Such  as  it  is,  it  burns  with  the  fire  kindled  by  our  revolutionary 
fathers,  and  seeks  no  screen  from  every  responsibility  which  le- 
gitimately belongs  to  its  manifestation. 

I  hold  in  my  hand  a  court  copy  of  these  interrogatories,  which 
has  been  served  on  me,  as  an  attorney,  practising  in  the  courts 
of  Virginia.  The  court  is  doubtless  familiar  with  this  quasi  bill 
of  indictment — the  forerunner  of  another  and  more  summary  pro- 
cess, unless  I  bend  the  knee  and  bow  the  head  to  this  legal  satrap. 
I  have  thought  (but  it  seems  to  have  been — 

"All  but  a  dream  at  the  best — "') 

that  I  had  some  few  vested  rights  as  a  practising  lawyer.  It 
was  my  habit,  until  these  latter  days  of  new  lights  and  inquisi- 
torial precepts,  to  FEEL  that  my  conscience  was  in  my  own  keep- 
ing; that  it  was  my  own  peculiar  trust,  amenable  only  to  the 
God  who  endowed  it.  But  this  precept  of  Confederate  power 
bids  me  treat  it  as  "a  scofi",  a  jcvSt,  a  by-word  through  the  world.'' 
A  thing  to  be  impaled,  tortured,  sported  with,  at  the  discretion 
of  the  chief  law  officer  of  the  Confederate  States. 

Sir,  where  do  I  stand?  Before  what  tribunal  am  I  now,  by 
the  process  of  this  court,  compelled  to  resist  or  succumb  to  these 
orders,  which,  in  so  many  words,  say,"  ^'You  are  hereby  com- 
manded, in  the  name  of  the  President  of  the  Confederate  States, 
to  violate  every  previous  promise  ;  to  expose  every  secret  confided 


14 

to  you ;  to  open  your  bosom  as  the  channel  to  concealed  trea- 
sures^ that  my  agents  may  enter,  search  for,  and  take  possession 
of  the  trust  confided  to  you  f  " 

I  agiiin  ask,  where  do  I  stand?  In  what  age  do  Hive?  Am 
I  a  Virginian,  or  the  mere  pliant  subject  of  the  Confederate 
States?  Who  and  what  is  the  Attorney  General,  that  he  feels 
himself  at  liberty  to  frame  a  bill  of  discovery  at  large,  and  on 
it  issue  a  general  search  warrant  against  my  conscience? 
Wlicnce  this  vast  power?  The  President  of  the  Confederate 
States,  by  his  precept,  placed  in  the  hands  of  the  marshal  of 
this  court,  commands  me  to  open  wide  the  guards  to  my  con- 
science, that  he  may  levy  on  property  entrusted  to  me,  as  a 
man  of  honor,  by  those  who  were  entitled  so  to  do,  by  all  laws 
then  existing. 

Be  it  so.  I  am  here  in  open  court  to  enter  my  solemn  pro- 
test, and  by  every  legitimate  means  at  my  dif^posal,  to  resist  this 
abominable  writ  of  ravishment.  Sir,  I  hold  it  to  be  a  legal 
maxim,  both  under  the  Confederate  Constitution,  the  Bill  of 
Rights  and  Constitution  of  Virginia,  that  no  process  of  any 
court,  can  issue  against  me,  in  the  form  of  a  penal  command, 
until  the  proper  foundation  has  been  laid,  by  a  responsible  per- 
son, in  the  way  of  suit,  petition  or  information.  No  officer  of 
any  grade,  or  of  either  government,  can  enter  a  private  resi- 
dence, to  search  for  property  under  a  general  search  ivarrant. 
His  death  would  be  the  consequence  if  he  met  the  proper  resis- 
tance, and  his  slayer  would  stand  justified  before  God  and  man. 
And  yet  I  am  noAV  under  moral  duress,  to  answer  a  general 
search  warrant  levied  on  my  conscience,  in  the  absence  of  any 
suit,  allegation  or  complaint.  And  for  sooth,  when  I  have  an- 
swered, and  thus  placed  myself  in  the  clutches  of  this  novel  ma- 
chine of  moral  torture  if  I  do  not  happen  to  meet  the  views  of 
the  Receiver,  he  is  empowered  to  draw  yet  closer  the  screws, 
and  tighten  the  chords  of  this  instrument  of  inquisitorial  search. 

If  I  fail  in  this  my  determined  opposition  to  this  precept,  I 
«,m  a  prisoner  at  the  discretion  of  this  honorable  court,  and  lia- 
ble to  a  heavy  fi.ne.     Sir,  this  is  no  exaggeration.     It  is  a  mel- 


16 

ancholy  truth.  And  is  this  the  boasted  freedom  vouchsafed  in 
the  spirit  and  genius  of  our  revolution?  Tell  me  not  that 
there  is  no  duress  here.  It  is  a  duress  more  significant  in  its 
scope  and  terrible  in  its  consequences  than  any  mere  physical 
torture.  You  may  rack  the  frame — reduce  the  body — flay  the 
skin — intensify  the  most  excruciating  suffering,  and  the  brave, 
honorable^  high-spirited  freeman  will,  so  long  as  you  leave  pure 
and  unclouded  his  conscience,  denounce  the  tyrant,  and  look  to 
God  and  posterity  as  he  sinks  under  tlie  cruel  infliction. 

The  peculiar  object  of  assault  by  these  interrogatories  is  the 
conscience.  They  sport  with  it  as  a  worthless  thing.  With  a 
ruthless  cruelty  they  invade  and  violate  every  trust;  they  ab- 
solve or  seek  to  absolve  from  every  existing  contract  in  the  way 
of  this  remorseless  search  after  gain;  they  repudiate  all  social 
confidence,  and  prostitute  every  implied  or  express  promise ; 
they  seek  to  expose  to  the  "miser's  view"  the  "golden  secrets 
of  the  heart;"  they  aim  to  extract  "the  jewel  of  honor"  that 
they  may  grasp  the  "hidden  treasure"  encased  in  the  soul;  they 
assail  every  trust;  they  violate  every  rule  of  sound  practice,  and 
assail  every  sentiment  of  personal  honor;  they  penetrate,  with- 
out authority,  and  against  all  law,  the  consecrated  secrets  of 
professional  privacy,  and  require  attorneys,  agents,  factors,  trus- 
tees to  do  that,  which,  if  they  had  done  one  year  ago,  they 
would  have  been  denounced  and  shunned  by  all  honorable  men; 
they,  with  the  bill,  threaten  punishment  for  the  observance  of 
the  most  sacred  promises,  and  repudiate  as  worthless,  that  per- 
sonal responsibility  on  which  the  corner  stone  of  society  and  re- 
ligion rest;  they  rest  as  a  basis,  on  the  assumed  dishonor  and 
guilty  inaction  of  fiduciaries,  to  corrupt  whom  is  to  sap  the 
foundation  stone  of  the  social  compact;  they  seek  to  deaden  the 
conscience  and  imnnire  the  soul  under  a  load  of  accumulated 
infamy,  and  offer  bold  impunity  to  a  shameless  disregard  of 
professional  secresy ;  yea,  more,  they  aim  to  britig  every  law- 
yer, trustee  and  agent  a  prisoner  before  the  courts,  and  seek  to 
punish,  for  a  refusal  to  surrender  their  trusts  and  expose  their 
principal's  secrets. 


16 

And  I  here  assert  that  all  this  is  sought  to  bo  accomplished 
by  the  Attorney  General  without  authority,  and  against  the 
po^Ycrs  (great  as  they  are)  confided  to  liis  keeping,  by  the  six- 
teenth section  of  the  bill.  The  language  of  that  section  is  as 
follows:  "The  Attorney  General  shall  prescribe  such  uniform 
rules  of  proceeding  under  this  Imv,  not  herein  otherwise  provided 
for,  as  shall  meet  the  necessities  of  the  case."  From  this  au- 
thority these  interrogatories  have  been  framed.  It  cannot  be 
that  the  law  allows,  or  "the  necessities  of  the  case"  require  such 
a  proceeding  as  this. 

I  deny  the  power,  validity  or  authority  of  this  precept.  It  is 
for  this  court  to  judge  between  me  and  the  government.  The 
issue  is  fairly  presented.  Be  the  judgment  of  this  court,  the 
one  way  or  the  other,  I  have,  to  the  best  of  my  poor  abilities, 
discharged  the  duty  I  owe  to  my  country,  my  profession  and 
myself.  The  issue,  with  its  weighty  responsibilities,  will  pass 
out  of  my  hands,  and  rest  with  the  court  at  the  conclusion  of 
the  argument. 

If  in  the  wisdom  of  the  court  it  shall  be  adjudged  that  this 
precept  is  correct,  and  must  be  sustained,  I  shall  at  least,  here- 
after, realize  the  proud  consciousness  that  I  have  here,  in  open 
court,  entered  my  solemn  protest.  With  this  assurance,  I  have 
no  vain  glorious  protestations  to  make  of  loyalty  and  devotion 
to  the  government.  I  do  not  belong  to  that  class  of  men,  thank 
God,  who  seek  favor  by  pandering,  on  the  one  hand,  to  the  "pow- 
ers that  be,"  or  on  the  other,  catering  to  popular  prejudices. — 
I  am  a  devotee  to  constitutional  liberty  and  institutional  free- 
dom. I  regard  this  bill  and  these  interrogatories  as  adverse  to 
both,  and  have  therefore  opposed  both,  with  a  clear  conscience 
and  a  fearless  heart.  I  have  no  faith  in  any  law,  no  confidence 
in  any  government,  and  no  regard  for  any  system  of  administra- 
tion which  is  in  violation  of  the  original  compact,  on  which  all 
sound  legislation  must  rest.  "With  these  views,  I  am  assured  in 
my  own  conscience,  that  I  have,  in  this  argument,  as  every- 
where, used  my  best  efforts  to  sustain  the  Confederate  Govern- 
ment :  and  above  all,  to  maintain  my  own  self-respect,  and  to 


11 

discharge  my  duties  to  those  who  have  confided  their  interests 
to  my  keeping.  If,  sir,  there  has  been  error,  it  rests  in  the 
head,  not  in  the  heart.  I  have  not  been  guided  by  "the  crooked 
chords  of  discretion,  but  rather  by  the  golden  met  wands  of  the 
law." 

I  have  experienced,  in  the  argument  of  this  cause,  many 
painful  reminiscences.  The  last  time  it  was  my  privilege  to 
address  your  honor  under  the  Federal  Government,  there  sat 
by  your  side  the  venerable  form  of  the  Chief  Justice:  full  of 
years  as  he  was  ripe  in  wisdom,  and  crowned  with  honors;  the 
la.3t  judicial  account  we  had  of  that  eminent  jurist  and  fearless 
patriot,  he  was  in  his  oflScial  capacity,  in  the  City  of  Baltimore, 
holding  up  the  constitutional  charter  of  our  fathers,  as  the 
shield  against  the  strong  arm  of  arbitrary  power,  wielded  in  a 
ruthless  hand,  to  destroy  all  the  remaining  vestiges  of  individ- 
ual liberty.  The  violation  of  the  writ  of  habeas  corpus  by  the 
Lincoln  Government  was  not,  in  my  opinion,  a  more  fatal  blow 
to  individual  rights,  and  personal  freedom  than  this  precept  and 
these  interrogations.  I  can  but  hope  that  here  I,  feeble  as  I 
am,  may  be  more  successful  than  Judge  Taney,  whose  memory 
will  be  honored  and  cherished  to  the  latest  generations,  as  long 
as  constitutional  liberty  has  a  votary  left. 


OPINIOI^ 

OF 

JUDGE   HALYBURTON. 


The  Confederate  States  v.  John  H.  Gilmer : 

In  this  case  a  writ  of  garnishment,  without  any  previoua  pro- 
ceeding in  court,  was  issued  against  the  defendant,  under  the 
eighth  section  of  the  Sequestration  Act,  passed  by  Congress 
and  approved  by  the  President  on  the  30th  of  August  1861. 

Two  questions  present  themselves  for  the  decision  of  the  Court. 

The  first  is,  whether  Congress  has  authority  to  pass  the  afore- 
said act;  and  the  second  is,  whether  the  writ  is  in  conformity 
with  the  provisions  of  the  statute. 

The  defendant  endeavoured  to  show,  by  a  most  elaborate  ar- 
gument, that  the  powers  of  the  Provisional  Congress,  since  the 
adoption  of  the  permanent  Constitution,  are  controlled  by  the 
enumeration  and  definition  of  powers  in  the  eighth  section  of 
the  first  article  of  that  Constitution ;  and  that  as  the  4th  clause 
of  that  section  provides,  that  "no  law  of  Congress  shall  dis- 
charge any  debt  contracted  before  the  passage  of  the  same,"  the 
Sequestration  Act  is  void,  as  discharging  debts  due  to  alien  ene- 
mies before  the  passage  of  it. 

I  am  of  a  very  different  opinion. 

The  Provisional  Constitution  which  was  adopted  and  ratified 
by  the  Virginia  Convention  on  the  25th  of  April  1861,  declares 
that  it  is  "to  continue  one  year  from  the  inauguration  of  the 
President;  or  until  a  permanent  Constitution  or  confederation 
between  the  States  shall  be  put  in  operation,  whichsoever  shall 
first  occur. 

As  a  year  has  not  elapsed  since  the  inauguration  of  the  Pres- 
ident, and  a  permanent  Constitution  has  not  yet  been  put  in  op- 
eration, the  Provisional  Government  is  not  at  an  'end  by  the 
limitation  contained  in  that  clause. 


20 

I  say  it  has  not  been  put  in  operation,  because  a  President, 
chosen  in  pursuance  of  its  provisions,  has  not  yet  been  inaugu- 
rated, nor  have  Senators  been  appointed,  nor  have  the  members 
of  Congress  elected  under  it  takr-n  their  seats. 

The  first  section  of  the  sixth  article  of  the  permanent  Consti- 
tution declares  that  "the  Government  established  by  this  Con- 
stitution is  the  successor  of  the  Provisional  Government  of  the 
Confederate  States  of  America,"  that  is  to  say  that  it  is  to  suc- 
ceed, not  to  supersede,  the  Provisional  Government;  and  the 
same  article  goes  on  to  provide  that  all  the  laws  passed  by  the 
latter  shall  continue  in  force  until  the  same  shall  be  repealcS  or 
modified." 

The  second  section  of  the  seventh  article  of  the  same  Consti- 
tution provides  that  "the  Congress,  under  the  Provisional  Con- 
stitution, shall  prescribe  the  time  for  holding  the  fiist  election  of 
members  of  Congress  under  this  Constitution,  and  the  time  for 
assembling  the  same;"  and  that,  "until  the  assembling  of  such 
Congress,  the  Congress,  undo'  the  Provisional  Constitution, 
shall  continue  to  exercise  the  IcgislatiA'e  powers  granted  tliem, 
not  extending  beyond  the  time  limited  by  the  Constitution  of  the 
Provisional  GoA^ernment." 

By  this  last  clause  of  the  permanent  Constitution,  the  Con- 
gress, ^^ under  the  Provisional  Constitution,"  are  to  continue  to 
exercise  the  ^oyfQV?, granted  them.  Granted  them  how  or  when? 
By  the  Provisional  Constitution,  of  course.  That  is  the  only 
charter  by  which  that  Congress  holds  its  rights  and  privileges, 
and  which  defines  its  powers.  No  power  is  granted  it  by  any 
other  instrument,  except  the  power  to  prescribe  the  time  for 
holding  certain  elections,  and  for  the  meeting  of  the  Electoral 
College,  and  for  counting  the  votes,  and  inaugurating  the  Presi- 
dent; granted,  as  has  been  said,  by  the  second  clause  of  the 
seventh  article  of  the  permanent  Constitution. 

As  the  Congress,  under  the  permanent  Constitution,  has  never 
yet  assembled,  it  is  plain  that  the  Provisional  Government  is  not 
yet  at  an  end,  and  that  the  Congress  which  passed  the  Seques- 
tration Act  derived  its  powders  from  the  Provisional,  and  not  the 
permanent,  Constitution. 


21 

If  it  were  otherwise,  it  would  not  at  all  affect  my  opinion  as 
to  the  case  before  the  Court ;  because  among  other  reasons,  the 
Constitution  was  made  for  citizens  and  friends,  and  not  for  the 
benefit  of  aliens  and  enemies,  and  the  clause  in  question  is  not 
applicable  to  them. 

Had  then  Congress,  under  the  Provisional  Constitution,  by 
virtue  of  the  authority  therein  granted,  the  power  and  the  right 
to  pass  the  Sequestration  Act? 

That  Constitution  grants  to  Congress  the  power  to  "declare 
war,  grant  letters  of  marque  and  reprisal,  and  make  rules  con- 
cerning captures  on  land  and  water;''  and  some  other  powers, 
from  all  which  the  power  to  carry  on  war  results,  by  unavoida- 
ble implication. 

It  also  gives  Congress  the  power  "to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution  the 
foregoing  powers,  and  all  other  powers  exprcssl}'  delegated  by 
this  Constitution  to  the  Provisional  Government." 

The  term  "war"  in  the  Constitution  is  not  qualified  or  re- 
stricted by  any  other  word  or  expression  to  be  found  in  the  in- 
strument. The  power  to  make  war  is  conferred  in  the  broadest 
acceptation  of  the  term;  Avar  of  any  kind  and  in  any  shape 
which  the  discretion  of  Congress  may  dictate ;  war  in  its  stern- 
est aspect,  accompanied  with  all  its  horrors ;  or  in  its  mildest 
form,  attended  by  all  the  comities  and  courtesies  compatible  with 
such  a  state.  Is,  then,  when  war  exists  between  two  nations, 
the  confiscation  or  sequestration,  by  one  of  them,  of  the  prop- 
erty of  the  other  belligerent,  an  act  of  war?  It  seems  to  me 
to  be  clearly  so. 

To  seize  the  property  of  the  enemy  in  time  of  war  is  as  much 
an  exercise  of  the  powers  of  war,  or,  in  other  words,  an  act  of 
war,  as  the  capture  of  the  enemy  himself  would  be;  or  as  the 
killing  of  the  enemy  or  the  destruction  of  his  property  would  be. 

It  is  certainly  a  hostile  act;  and  it  has  never  been  doubted 
that  the  seizure  of  the  ships,  or  other  tangible  property  of  the 
enemy,  was  an  exercise  of  the  war-making  power. 

Judge  Marshall,  in  arguing  the  case  of  Ware  vs.  Ilylton,  in 
3d  Dallas,  210,  remarks  that  Virginia,  "being  engaged  in  war. 


00 


necessarily  possessed  the  powers  of  war,  and  thjit  confiscation  is 
one  of  those  powers;  weakening  the  party  against  whom  it  is 
employcrl,  and  strengthening  the  party  that  emploj-s  it." 

Tills,  I  think,  is  entirely  true.  It  is  not  merely  a  means  of 
making  war,  but  it  is  an  actual  exercise  of  the  powers  of  war. 
It  is  one  mode  of  currying  on  war. 

That  the  makers  of  the  Constitution  so  regarded  it  appears 
from  the  fact  that  they  granted,  in  express  words,  the  power  ''to 
make  rules  concerning  captures  on  land  and  water." 

They  did  not  say  the  power  "to  make  captures,"  because  they 
regarded  that  power  as  already  given  in  the  grant  of  power  to 
make  war. 

In  Brown  vs.  The  United  States,  8  Cranch.  122,  Chief  Jus- 
tice Marshall  said  "that  war  gives  to  the  sovereign  full  right  to 
take  the  persons  and  confiscate  the  property  of  the  enemy, 
wherever  found,  is  conceded;"  and  Story,  Justice,  says,  "the 
power  to  declare  war,  in  my  opinion,  includes  all  the  powers  in- 
cident to  war,  and  necessary  to  carry  it  into  effect.  If  the  Con- 
stitution had  been  silent  as  to  letters  of  marque  and  captures,  it 
would  not  have  narrowed  the  authority  of  Congress.  The  au- 
thority to  grant  letters  of  marque  and  reprisal,  to  regulate  cap- 
tures, are  ordinary  and  necessary  incidents  to  the  power  of  de- 
claring war.  It  would  be  utterly  ineffectual  without  them.  The 
expression,  therefore,  of  that  which  is  implied  in  the  very  nature 
of  the  grant,  cannot  weaken  the  force  of  the  grant  itself.  The 
words  are  merely  explanatory,  and  introduced  ex  ahundanii  eau- 
tela." 

It  is  maintained,  however,  by  some  distinguished  jurists  that 
although  the  Congress  might,  under  the  war-making  power,  have 
confiscated  lands  and  other  property  in  possession ;  yet  that  the 
confiscation  of  private  debts  is  contrai*y  to  the  laAV  of  nations ; 
therefore  Congress  had  no  such  power. 

Those  who  take  this  ground  do  not,  I  presume,  mean  to  assert 
that  the  law  of  nations  could  annul  or  modify  a  positive  and  ex- 
press grant  of  power  in  the  Constitution;  but  only  that  we 
ehoukl  refer  to  the  rules  of  international  law  to  illustrate  the 
provisions  of   the  Constitution,  and  to  ascertain  its  meaning. 


23 

They  do  not,  of  course,  mean  to  say  that  the  judges  of  the  Con- 
federate States,  "who  are  solemnly  sworn  to  support  the  Consti- 
tution, arc  to  disregard  it,  or  disobey  its  plain  behests,  because 
they  may  be  apposed  to  some  rule  of  international  law ;  but 
only  that  we  are  to  regard  the  grant  of  power,  in  the  Constitu- 
tion, to  make  war,  as  an  authority  to  conduct  it  in  the  way  sanc- 
tioned by  the  law  of  nations ;  and  therefore  that  we  should  look 
to  that  law  to  understand  the  extent  of  the  constitutional  power. 
If  this  argument  were  valid,  which  it  is  not,  in  my  opinion,  to 
what  conclusion  would  it  lead  us  in  the  present  inquiry?  Au- 
thorities upon  the  other  side  of  the  Atlantic  are  not  unanimous 
upon  the  question,  whether,  when  two  nations  are  at  war  with 
each  other,  one  of  them  may  lawfully  confiscate  private  debts 
due  from  its  citizens  or  subjects  to  those  of  the  other.  The  pre- 
ponderance of  authority,  however,  seems  to  be  in  favor  of  the 
right  to  do  so.  Phillimore,  a  writer  of  great  ability  and  learn- 
ing and  reputation — a  very  late,  if  not  the  very  latest  writer  we 
have  on  international  law — says,  that  "the  right  of  confiscating 
the  debts  of  the  enemy  is  a  corollary  to  the  right  of  confiscating 
his  property.  The  strict  right — the  summum  Jus — remains  un- 
questioned." We  have,  in  my  opinion,  sufficient  grounds  for 
saying  that,  by  the  law  of  nations,  even  as  it  is  understood  in 
Europe,  one  belligerent  power  has  the  right  to  confiscate  the 
debts  due  from  subjects  of  another  with  which  it  is  at  war. 

I  do  not,  however,  pursue  this  inquiry  further,  because  what- 
ever may  be  the  rule  there,  the  law,  as  understood  in  America, 
seems  to  be  settled  in  favor  of  the  right ;  and  if  we  are  to  sup- 
pose that  those  who  made  and  adopted  our  Constitution  had  ref- 
erence to  the  law  of  nations  in  granting  the  war-making  power, 
and  intended  that  the  grant  should  be  modified  by  that  law,  we 
must  presume  that  they  looked  to  the  law  as  generally  under- 
stood here,  and  as  interpreted  by  our  own  Courts  and  writers 
upon  the  suject. 

Wheaton  is  of  opinion  that  the  right  to  confiscate  debts  stands 
upon  the  same  basis  with  the  right  to  confiscate  other  property. 
He  remarks  that  "it  had  been  justly  observed  that  between 
debts  contracted  under  the  faith  of  laws,  and  property  acquired 


24 

on  the  faith  of  the  same  laws,  reason  shows  no  distinction  ;  and 
the  right  of  the  sovereign  to  confiscate  debts  is  precisely  the 
same  with  the  right  to  confiscate  other  property  found  vrithin 
the  country  on  the  breaking  out  of  the  war.  Both  require  some 
special  act  expressing  the  sovereign  will,  and  both  depend,  not 
on  any  inflexible  rule  of  international  law,  but  on  political  con- 
siderations by  which  the  judgment  of  the  sovereign  may  be 
guided."     (Elements  of  International  Law,  page  381.) 

Chancellor  Kent,  in  his  Commentaries,  observes  that  "how- 
ever strong  the  current  of  authority  in  favour  of  the  modern 
and  milder  construction  of  the  rule  of  national  law  on  this  sub- 
ject, the  point  seems  to  be  no  longer  open  for  discussion  in  this 
country ;  and  it  has  become  definitely  settled  in  favor  of  the 
ancient  and  sterner  rule  by  the  Supreme  Court  of  the  United 
States;"  and  the  opinions  of  the  Judges  in  Ware  vs.  Hylton, 
3d  Dallas,  199,  and  Brown  vs.  the  United  States,  in  8th  Cranch, 
are  in  favour  of  the  right. 

The  position,  therefore,  that  the  power  to  confiscate  debts  due 
to  an  enemy  is  denied  to  Congress  by  the  Constitution  of  the 
Confederate  States,  because  it  is  contrary  to  the  law  of  nations, 
is  untenable. 

But  if  I  were  in  error  as  to  the  general  rule  of  international 
law,  either  in  Europe  or  in  this  country,  it  would  not  vary  the 
conclusion  at  which  I  should  arrive  as  to  the  constitutionality  of 
the  Sequestration  Act. 

Whatever  may  be  the  general  rule,  it  must  be  admitted  that 
there  are  important  exceptions  to  it. 

When  nations  are  at  war,  the  obligation  to  observe  the  law 
must  be  mutual. 

If  one  of  the  belligerents  deliberately  and  intentionally  disre- 
gards and  disobeyo  it,  the  other  may  do  so  likewise. 

If  one  nation  were  to  torture  or  put  to  death  the  prisoners 
taken  in  war  from  another,  it  will  not  be  denied  that  the  other 
would  have  the  right  to  retaliate. 

Now,  the  Sequestration  Act  recites  that  "the  Government 
and  people  of  the  United  States  have  departed  from  the  usages 
of  civilized  warfare  in  confiscating  and  destroying  the  property 


25 

of  the  people  of  the  Confederate  States  of  all  kinds,  whether 
used  for  military  purposes  or  not,"  and  that  "our  only  protec- 
tion against  such  wrongs  is  to  be  found  in  such  measures  of  re- 
taliation as  will  ultimately  indemnify  our  own  citizens  for  their 
losses,  and  restrain  the  wonton  excesses  of  our  enemies." 

This  recital  it  would  be  the  duty  of  the  Courts  of  the  Con- 
federacy to  receive  as  true,  even  if  it  were  not  so,  and  they 
were  disposed  to  controvert  it. 

But  it  is  known  to  us  all  that  the  Government  of  the  United 
States  denies  our  distinct  and  separate  nationality,  and  will  not 
even  recognize  us  as  a  belligerent  people ;  and,  as  a  necessary 
consequence,  denies  om-  right  to  the  privileges  and  protection  of 
the  law  of  nations  and  refuses  to  observe  that  law  in  its  inter- 
course with  us. 

It  refuses  to  exchange  prisoners  with  us  ;  our  privateersmen 
are  arrested  and  tried  as  pirates  ;  and  in  other  respects  it  has 
departed  from  the  usages  and  laws  of  civilized  warfare. 

Under  circumstances  such  as  these,  it  is  impossible  for  me  to 
entertain  the  shadow  of  a  doubt  as.  to  the  right  and  power  of 
Congress  to  sequestrate  and  to  confiscate  debts  due  the  citizens 
of  the  United  States. 

We  have  now  to  enquire  whether  the  writ  and  interrogatories 
annexed  to  it  be  in  conformity  with  the  provisions  of  the  act  of 
Congress  in  question. 

It  is  said  that  a  writ  of  garnishment  is  merely  ancillary  pro- 
cess, never  used  but  in  aid  of  a  suit  or  proceeding  previously 
commenced,  and  that  the  words  in  the  act  are  to  be  understood 
only  in  the  sense  in  which  they  have  been  heretofore  used. 

It  is  true  that  "no  instance  has  been  mentioned  at  the  bar, 
nor  does  any  occur  to  me,  in  Avhich  such  a  writ  has  been  issued 
to  begin  a  suit.  In  England  and  in  this  country,  so  far  as  is 
known  to  me,  it  has  always  been  used  merely  as  auxiliary  to  an 
action  or  proceeding  already  instituted  ;  but  the  term  garnish- 
ment does  not  necessarily,  and  ex  vi  termini,  mean  that.  It 
does  not,  in  fact,  in  its  true  acceptation,  refer  to  any  such  pro- 
ceeding at  all. 


26 

To  garnish  means,  in  its  primary  and  in  its  legal  sense,  merely 
to  warn  or  to  summon. 

A  person  in  whose  hands  effects  are  attached,  "is  styled  a 
garnishee,  says  Drake,  because  of  his  being  ivarned  not  to  pay 
the  money  or  deliver  the  property  of  the  defendant  in  his  hands 
to  him,  but  to  appear  in  Court  and  answer  the  plaintiff's  suit ;" 
and  any  person  having  the  property  of  another  in  his  hands, 
upon  which  some  third  person  may  have  a  claim,  upon  being 
warned  by  process  not  to  deliver  such  property  to  the  owner, 
and  summoned  to  answer  the  demand  of  such  third  person,  may 
be  termed  a  garnishee  with  as  strict  propriety  of  speech  as  if  he 
had  been  required  to  appear  and  answer  in  a  separate  suit. 

Is  there,  then,  any  suflficient  reason  for  supposing  that  Con- 
gress meant  that  the  writ  of  garnishment  might  be  issued  as  an 
original  writ  and  a  distinct  proceeding  ?  In  my  opinion  there 
is. 

If  it  had  been  intended  merely  as  process  to  support  the  peti- 
tion which  may  be  filed  by  a  receiver,  it  Avould  naturally  and 
probably  have  been  mentioned  in  the  sixth  section  of  the  act 
where  the  notice  is  directed  to  issue,  and  not  in  a  distinct  sec- 
tion. 

Secondly,  it  is  directed  by  the  act  of  Congress  that  the  re- 
ceiver who  files  a  petition  shall  state  in  it  the  name  of  the  party 
having  possession  of  property  supposed  to  belong  to  an  alien 
enemy,  and  set  forth,  ^'as  best  he  can,  the  estate,  property,  right, 
or  thing  sought  to  be  recovered ;"  and  process  which  was  in- 
tended merely  to  render  effectual  such  a  suit,  would  call  upon  the 
party  only  to  answer  as  to  the  property  mentioned  in  the  peti- 
tion. 

Writs  of  garnishment,  on  the  other  hand,  which  the  clerk  is 
directed  to  issue,  at  the  request  of  the  receiver,  and  command 
those  to  whom  they  are  directed  to  answer  under  oath,  what 
property  oi  any  alien  enemy  they  may  have  or  may  have  had  in 
their  possession  at  the  time  of  the  service  of  the  writ,  or  at  any 
time  since,  without  describing  or  setting  forth  any  property  or 
referring  to  any  particular  alien  enemy ;  and  seems  to  have  been 
intended  to  enforce  a  compliance  with  the  second  and  third  sec- 


27 

tions  of  the  act,  which  make  it  the  duty  of  every  citizen  of  the 
Confederate  States,  and  of  every  attorney,  agent,  former  part- 
ner, trustee  or  other  person  liolding  or  controlling  property  of  or 
for  any  alien  enemy,  to  inform  the  receiver  thereof. 

The  act  does  not,  in  terms,  provide  that  such  writs  shall  issue 
in  any  particular  suit,  or  against  any  defendant  in  a  suit;  but 
"from  time  to  time"  against  any  person  whatever,  as  the  re- 
ceiver may  require. 

When  the  writ  has  been  returned,  and  the  person  on  whom  it 
is  served  has  appeared  and  answered,  the  Court  may  condemn 
the  property  according  to  answer,  and  to  make  such  rules  and 
orders  as  to  it  shall  seem  proper  for  the  bringing  in  of  those 
persons  claiming  an  interest  or  disclosed  by  the  answer  to  have 
an  interest  in  the  litigation. 

There  would  seem  then  to  be  no  reason  for  requiring  that  a 
petition  should  be  filed  before  the  issuing  of  the  writ ;  as  com- 
plete justice  may  be  done  without  it,  and  it  would  in  these  cases 
be  only  a  useless  and  cumbrous  piece  of  machinery. 

A  further  objection,  however,  is  taken  to  the  writ  upon  the 
ground  that  a  compliance  with  the  requisitions  of  it  would  be  a 
breach  of  professional  confidence,  so  far  as  attorneys  at  law  are 
concerned.  That  it  is  a  rule  of  the  common  law,  which  has 
existed  for  centuries,  founded  on  principles  of  immutable  justice, 
that  a  "counsel,  solicitor  or  attorney  shall  not  be  permitted  to 
divulge  any  matter  which  has  been  communicated  to  him  in  pro- 
fessional confidence,"  and  that  it  would  be  wrong  so  to  interpret 
the  act  of  Congress  as  to  violate  this  rule. 

As  this  is  a  rule  of  statute  or  common  law,  and  not  of  consti- 
tutional law,  I  suppose  no  one  will  affirm  that  the  legislative 
power,  which  enacts  or  adopts  it,  may  not  repeal  or  annul  it  if 
it  pleases.  The  privilege  is  not  one  of  those  great,  inalienable, 
indefeasible  and  inprescriptible  rights  of  man,  which  no  govern- 
ment can  take  away,  nor  any  legislature  impair,  but  simply  a 
rule  of  law,  resting  upon  convenience  and  policy,  and  the  only 
inquiry  we  have  to  make  is  whether  the  legislative  power  in- 
tended to  abridge  it  or  not  ? 

A  sufficient  answer  was  given  to  the  objection  we  are  consid- 


28 

ering  by  the  learned  District  Attorney  for  the  Confederate 
States,  at  the  bar,  when  he  said  tliat  the  privilege  of  which  we 
are  speaking  was  the  privilege  of  the  client^  and  not  of  the  attor- 
ney, in  any  case,  and  that  where  the  client  cannot  avail  himself 
of  it  the  attorney  cannot.  If  authority  were  wanting,  all  the 
writers  upon  evidence,  of  whom  we  know  anything,  agree  upon 
this  point ;  and  they  are  fully  sustained  by  the  cases  to  which 
they  refer,  and  .as  an  alien  enemy  has  no  day  in  Court ;  no  pef- 
sona  standi  in  judicio,''  to  borrow  a  phrase  from  the  civil  law, 
cannot  appear  in  Court  or  be  heard  if  he  were  to  appear  ;  there 
is  no  one  who  can  plead  or  take  advantage  of  the  privilege,  and 
the  rule  of  law  does  not  apply  to  his  case. 

That  it  was  not  adopted  from  any  tender  regard  for  the  con- 
scientious scruples  of  an  advocate,  or  to  avoid  wounding  his 
sense  of  honour,  is  plain  from  the  fact  that  it  extends  to  no 
per.sons  but  to  counsel,  solicitors,  and  attorneys. 

Physicians,  surgeons,  clergymen,  and  the  most  familiar  bosom 
friends  of  a  party  to  a  suit  are  required,  and  may  be  compelled 
to  reveal  matters  confided  to  them  under  the  most  solemn  prom- 
ises of  secresy  ;  yet  their  sense  of  honour  and  their  feelings 
ought  as  much  to  be  respected  and  regarded  as  those  of  counsel, 
and  would  be,  if  the  rule  reposed  upon  any  such  foundation. 

But  if  this  rule  extended,  in  its  generality,  to  aliens  as  well 
as  others,  it  would  avail  nothing  in  the  case  before  the  Court ; 
because,  in  my  opinion,  it  would  be  contrary  to  the  language 
and  meaning  of  the  Sequestration  Act. 

That  the  act  was  meant  to  be  far  more  comprehensive  than 
the  ordinary  rules  of  evidence  is  obvious,  from  the  fact  that 
every  citizen,  whether  summoned  in  a  cause  or  not,  whether 
called  into  Court  or  not,  and  whether  interested  in  the  subject 
matter  or  not,  is  required  to  give  information  of  all  property 
and  credits  held  by  or  for  any  alien  enemy  ;  and  the  third  section 
of  the  act,  as  I  understand  it,  expressly  and  by  name  embraced 
attorneys  at  law. 

The  third  section  of  the  act  declares  "that  it  shall  be  the 
duty  of  every  attorney,  agent,  former  partner,  trustee  or  other 


29 

person  holding  or  controlling  any  such  lands,  tenements,  &c.," 
to  inform  the  receiver  of  the  same,  and  make  an  account  thereof. 

Now  what  is  meant  by  the  tgrm  "attorney"  here  ?  The  act 
does  not  say  "attorney  in  fact,"  any  more  than  "attorney  at 
law."  Why  then  should  we  include  the  one  and  exclude  the 
other?  or  why  should  we  exclude  the  attorney  at  law  and  include 
the  attorney  in  fact  ? 

There  is  much  greater  reason  for  excluding  the  attorney  in 
fact,  and  including  the  attorney  at  law  ;  and  this  last  is  probably 
the  true  construction. 

Every  attorney  in  fact  is  an  agent,  and  is  not  only  so  des- 
cribed in  all  books  on  agency,  but  is  usually  so  called  in  com- 
mon parlance,  and  it  would  hardly  have  been  thought  necessary 
to  introduce  into  the  act  the  word  "attorney,"  in  order  to  em- 
brace attorneys  in  fact  alone;  but  attorneys  at  law  are  seldom 
or  never  called  agents  except  in  law  books,  and  therefore  it  was 
prudent  and  proper  to  use  that  word  if  it  were  intended  that  the 
act  should  apply  to  them ;  and  although  it  would  have  given 
more  perspicuity  and  precision  to  the  language  of  the  law  if  it 
had  gone  further ;  it  was  not  necessary  to  have  done  so. 

Then,  let  us  look  further  into  the  spirit  of  the  law.  It  has 
been  shown  that  the  plea  of  privilege  is  not  given  to  the  attor- 
ney, but  to  the  client ;  and  is  there  anything  in  the  Sequestra- 
tion Act  to  induce  us  to  believe  that  the  Legislature  meant  to 
allow  any  particular  privileges  to  an  alien  enemy  ?  To  grant 
any  peculiar  favours  to  those  men  who  are  invading  our  country 
and  seeking  to  desolate  and  desecrate  our  homes?     I  think  not. 

This  objection  to  the  writ,  then,  must  be  overruled  like  the 
others. 

The  eighth  section  of  the  Sequestration  Act,  however,  directs 
that  writs  may  issue  commanding  the  persons  on  whom  they 
may  be  served  "to  answer,  under  oath,  what  property  or  effects 
he  had  at  the  service  of  the  process,  or  since  has  had  under  his 
possession  or  control,  belonging  to,  or  held  for,  any  ahen  ene- 
my;" and  the  writ  requires  such  person  to  answer,  not  only 
what  sums  he  had  at  the  time  of  the  service  of  the  writ  or  since, 
but  what  sums  he  had  on  the  21st  of  May  1861,  or  since;  and 


30 

not  only  what  sums  he  himself  had,  but  whether  he  hiows  of 
"any  land  or  lands,  tenement  or  tenements,  hereditament  or  he- 
reditaments, right  or  rights,  credit  or  credits,  within  the  Con- 
federate States  of  America,  or  any  right  or  interest  held,  own- 
ed, possessed  or  enjoyed,  directly  or  indirectly  by,  or  for,  one 
or  more  alien  enemies  since  the  21st  day  of  May  18(31,  or  in  or 
to  which  any  one  or  more  alien  enemies  had,  since  that  time, 
any  claim,  title  or  interest,  direct  or  indirect." 

In  these  respects  the  writ,  as  it  seems  to  me,  goes  beyond  the 
law,  and  is  to  that  extent  void. 

The  letter  of  the  law  on  this  point  is  so  distinct  and  explicit 
that,  it  seems  to  me,  to  put  a  dififerent  construction  upon  it  from 
that  which  its  express  language  requires,  would  be  to  go  beyond 
the  province  of  the  Judge,  and  to  make  the  law,  and  not  ex- 
pound it. 

It  may  be  said  that  the  act  means  to  sequestrate  all  property 
which  belonged  to  an  alien  enemy  on  the  21st  day  of  May  18G1, 
an<l,  therefore,  there  could  be  no  reason  for  confining  the  writ 
within  narrower  limits;  but  it  is  very  possible,  and  not  improba- 
ble, that,  although  Congress  may  have  intended  to  sequestrate 
all  debts  due  to  an  alien  enemy,  as  well  as  other  property  be- 
longing to  such  enemy  on  the  21st  of  May  18G1,  and  since,  if 
the  fact  of  such  indebtedness  could  be  established  by  other 
proof;  yet  that  the  temptation  to  perjury  would  be  too  great  if 
a  party  were  called  on  to  state  on  oath  what  debts  he  owed  and 
might  have  paid  to  such  enemy  before  the  service  of  the  writ, 
and  in  utter  ignorance  of  the  law. 

It  may  be  thought,  too,  that  unless  the  writ  of  garnishment 
should  extend  back  to  the  21st  day  of  May  there  would  be  no 
way  of  reaching  such  debts,  even  when  a  petition  might  be  filed 
particularly  describing  them;  but  the  proof  might  not  be  quite 
satisfactory  Avithout  the  oath  of  the  party.  I  think,  however, 
that  the  provision  in  the  eighth  section,  which  declares  that  "m 
all  cases  of  litigation"  under  the  act  (not  under  the  particular 
section  only)  the  Receiver  may  propound  interrogatories  "touch- 
ing any  matter  involved  in  the  litigation,"  and  requires  answers 
on  oath  from  the  defendant,  would  apply  to  such  a  case. 


31 

Whether,  however,  we  may  be  able  to  discover  the  reason  for 
it  or  not,  I  think  the  language  of  the  eighth  section,  on  the 
point  we  have  been  discussing,  too  explicit  to  be  evaded. 

I  will  not,  however,  quash  the  writ,  as  there  is  no  statute  nor 
any  rule  of  practice  applicable  to  this  case,  so  far  as  I  know, 
which  binds  me  to  do  so;  and  such  a  course  would  not  in  any 
way  promote  justice  or  the  ends  of  the  law;  but,  on  the  contra- 
ry, might  enable  a  party  to  avoid,  if  disposed  to  do  so,  (which 
the  defendant  here,  I  am  sure,  is  not)  the  payment  of  debts 
which  the  law  designs  to  sequestrate. 

The  Sequestration  Act  itself  allows  me  to  establish  such  rules 
of  procedure  as  I  may  think  proper  under  it,  not  inconsistent 
with  the  act  or  other  laws  of  the  Confederate  States. 

Following  the  analogies  of  the  law,  I  may  either  direct  the 
writ  to  be  amended,  or  without  doing  so,  order  the  party  to  an- 
swer such  interrogatories  as  he  is  bound  by  law  to  answer. 

I  shall  pursue  the  latter  course  as  most  convenient. 


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